Twitter May Be Barred From Disclosing FBI Demands
National Security Justifies Secrecy Order Precluding Inclusion in ‘Transparency Report’ of Number of Subpoenas, Orders for Information on Users, Panel Declares
By a MetNews Staff Writer
The government did not intrude upon Twitter’s exercise of its First Amendment rights by barring it from revealing publicly the number of Federal Bureau of Investigation administrative subpoenas and orders during a six-month period requiring that information be divulged concerning users, the Ninth U.S. Circuit Court of Appeals held yesterday.
Circuit Judge Daniel A. Bress authored the majority opinion which Senior Circuit Judge Carlos T. Bea signed. Circuit Judge Lawrence VanDyke wrote a concurring opinion.
Twitter, a San Francisco-based social media giant, proposed revealing in a “transparency report” the numbers of FBI inquiries it received during the period from July to December of 2013, but the FBI proclaimed that figure—as well as correspondence with Twitter—to be classified and required redactions from the report. Twitter sued and District Court Judge Yvonne Gonzalez Rogers of the Northern District of California granted summary judgment in favor of the government.
In an opinion affirming that judgment, Bress said:
“This dispute over what Twitter can and cannot disclose about information it learned as a recipient of national security legal process raises several important questions that lie at the intersection of national security and the freedom of speech: Does the government’s content-based limitation on Twitter’s speech violate the First Amendment? Do the relevant national security statutes provide sufficient procedural protections to Twitter, consistent with the First Amendment? And does due process require that Twitter’s outside counsel be granted access to the classified materials on which the United States relies in objecting to Twitter’s proposed disclosure?
“We hold that Twitter’s constitutional challenges fail to persuade. Although we acknowledge Twitter’s desire to speak on matters of public concern, after a thorough review of the classified and unclassified record, we conclude that the government’s restriction on Twitter’s speech is narrowly tailored in support of a compelling government interest: our Nation’s security. We further hold that the statutory scheme governing the permissible disclosure of aggregate data about the receipt of national security legal process allows for sufficient procedural protections, which Twitter received here. Due process likewise does not require that Twitter’s outside counsel receive classified information by virtue of Twitter filing this lawsuit.”
Under the statutory scheme, the FBI may acquire rom a “wire or electronic communication service provider’ such as Twitter “subscriber information” that is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” It is authorized to collect metadata, but not the actual communications.
There is provision for judicial review of Foreign Intelligence Surveillance Act orders that mandate secrecy.
The three-judge panel reviewed the materials in camera. Bress announced:
“Having intently studied the classified and unclassified materials in the record, we agree with the district court’s considered assessment.
“While we are not at liberty to disclose the contents of the classified materials that we reviewed, our analysis under the narrow tailoring prong depends principally on the knowledge we gleaned from our review of that material. The classified materials provided granular details regarding the threat landscape and national security concerns that animated the higher-level conclusions presented in the unclassified declarations. The classified declarations spell out in greater detail the importance of maintaining confidentiality regarding the type of matters as to which intelligence requests are made, as well as the frequency of these requests.”
“Against the fuller backdrop of these explicit illustrations of the threats that exist and the ways in which the government can best protect its intelligence resources, we are able to appreciate why Twitter’s proposed disclosure would risk making our foreign adversaries aware of what is being surveilled and what is not being surveilled—if anything at all. Given these concerns and this fuller backdrop, we are willing to accept the main conclusions outlined in the unclassified materials, which express generally why revealing the information Twitter wishes to disclose would significantly harm the government’s national security operations by signaling to our adversaries what communication channels to avoid and which to use.”
Twitter protested that it has been deprived of due process, but Bress declared that it has “received considerable process,” though not to the extent required in censorship cases, drawing a distinction between “a restriction on the disclosure of classified information is not akin to…censorship schemes.” He commented:
“This is hardly a case in which a would-be speaker was entirely frustrated by an administrative censor.”
The circuit judge observed that “the district court gave the case careful and diligent consideration.”
Review by Attorney
Twitter also complained that its lead counsel, Lee H. Rubin of Mayer Brown LLP, was not allowed to review the documents in dispute. Bress responded:
“There is no general constitutional rale requiring the government to provide classified materials to an adversary in litigation. Nor is there a general constitutional rale allowing a party access to classified information by virtue of its decision to file a lawsuit that implicates that kind of information. That is true even if the party seeking the information has appropriate security clearances.”
“The government may not fend off every Fust Amendment challenge by invoking national security. But we must apply the First Amendment with due regard for the government’s compelling interest in securing the safety of our country and its people.”
VanDyke authored an opinion reaching the same result as Bress. He said there was no need top consider the content of the documents that were classified, arguing:
“The unclassified FBI declarations reveal that the Government redacted certain information in Twitter’s Report because the ‘message expressed,’ if published, would reasonably be expected to endanger national security…. By the FBI’s own attestations, therefore, it was precisely the content of the redacted information that could endanger national security if disclosed and accordingly justified the classification of that information.”
The case is Twitter v. Garland, 20-16174.
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